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Utah AG: State Bar has closed one Swallow investigation, won't prosecute

Published October 14, 2013 7:25 am

Politics • Alliance director disappointed complaint alleging ethical violations was rejected.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

John Swallow's office announced Sunday that the Utah State Bar has closed one of its two cases against the embattled state attorney general.

In a statement, Swallow's office said the bar sent him a letter on Tuesday saying it has thoroughly reviewed the allegations and "must decline to prosecute the matter and the case will be closed."

"I am grateful to the Bar for its careful consideration of the allegations and for its reasoned analysis in closing the case," Swallow said in a statement. "Despite the early rush to judgment, it is now becoming clear that people with an agenda have made unsubstantiated allegations."

The complaint, filed by Maryann Martindale, executive director of the liberal-leaning Alliance For A Better Utah, and board member David Irvine alleged that Swallow may have violated five sections of the Rules of Professional Conduct and potentially other state laws and the Utah Public Officers' and Employees' Ethics Act.

The complaint focused on whether $23,500 in payments Swallow said he received for consulting work on a Nevada cement plant were actually for helping Jeremy Johnson — founder of the company I Works and a prominent donor to Swallow's predecessor, Mark Shurtleff — thwart a federal investigation into his business.

It also alleged that Swallow violated the attorney-client relationship when he had conversations with a potential donor who was a target of an investigation by the state's Division of Consumer Protection.

The Oct. 8 letter from Sharadee Fleming, assistant counsel in the bar's Office of Professional Conduct, said the Alliance's complaint did not provide adequate documentation to support the allegations.

"Although you alleged that Mr. Swallow violated ethical rules regarding confidentiality, conflicts of interest and diligence (to name a few), you did not provide a sufficient basis for these claims."

Without those details, Fleming wrote that the office "must decline to prosecute this matter and the case will be closed."

Martindale said she felt like the complaint pointed out detailed, specific violations of the Code of Professional Conduct and it is hard to comprehend why the bar wouldn't act.

"It really feels like it's a lot of protecting your own," she said. "I don't know if they wanted some smoking gun, some secret thing. But it seems that all the things that are public knowledge are more than enough [to act on]. It just seems like they didn't really want to pursue it."

A second bar complaint, filed by Traci Gundersen, former head of the state's Division of Consumer Protection, also focuses on Swallow's conversation with the business owner who was under investigation. The complaint is still pending.

"Let's hope they take the other complaint more seriously," said Martindale. "They obviously chose not to take ours seriously."

In Fleming's letter to Martindale, there is a possible indication the bar will dismiss that complaint, as well. Fleming wrote that conversations with a target of an investigation and Swallow expressing his intent to move the Division of Consumer Protection into the attorney general's office "do not, in and of themselves, rise to the level of ethical violations."

The Utah Constitution requires the attorney general to be a licensed lawyer, so disbarment could have meant Swallow's removal from office.

Last month, the U.S. Department of Justice's Public Integrity Division notified Swallow and Shurtleff that, after months of investigation, it would not file federal criminal charges against Swallow.

The FBI is continuing to investigate in conjunction with two county attorneys to see if Swallow may have broken any state laws.

And on Friday, Swallow and the attorney general's office provided an initial response to a pair of subpoenas issued by a House investigative committee conducting a fact-finding probe that could ultimately serve as the basis for impeachment proceedings.

Rep. Jim Dunnigan, R-Taylorsville, chairman of the House inquiry, called the documents a "good faith effort" to comply with the subpoena, but said other documents are expected this week.

"We know it's not complete, but we expect, in talking to the office of the attorney general, more will be forthcoming," Dunnigan said. "So we discussed that with them and we appreciate their cooperation."

Investigators have interviewed more than 60 witnesses as part of the probe.

Some representatives have called for the House to put its investigation, which may cost as much as $3 million, on hold to refocus the investigation.

gehrke@sltrib.com

Twitter: @RobertGehrke